Criminal Law

OP-ED: The 14th Amendment Was Meant to Be a Protection Against State Violence

On December 3, 1865, a group of Black Mississippians wrote to the state’s governor, demanding respect for their newly won freedom. “Now we are free,” they insisted, “we do not want to be hunted … All we ask is justice and to be treated like humane beings.” They recalled vividly “the yelping of bloodhounds and tareing of our fellow servants To pisces” by slave patrols, and called for an end to these violent abuses. The Fourteenth Amendment, written the next year and ratified in 1868, vindicated their demands for equal justice, human dignity, and bodily security.

The Fourteenth Amendment effected a fundamental transformation in the constitutional law of policing in two respects. First, it required states to respect basic fundamental rights, including those to life and personal security. State police could not indiscriminately search and seize Black Americans. Second, as Senator Jacob Howard—one of the amendment’s framers—explained in congressional debates, its guarantee of “the equal protection of the laws” demanded “one measure of justice” for all persons, regardless of race. The requirement of equal protection ended “the injustice of subjecting one caste of persons to a code not applicable to another,” according to Howard.

Together, these guarantees sought to put an end to racialized policing practices. In doing so, the Fourteenth Amendment embedded directly in the Constitution the idea that violence against Black people must stop. This reflected the obvious and most basic truth that bodily integrity and security are fundamental to freedom. The Fourteenth Amendment struck at centuries of history that permitted Black bodies to be violated indiscriminately, instead promising personal security to all. Open-ended police power, the framers of the amendment recognized, was a tool of racial oppression and violence. Equal citizenship and true freedom could not be enjoyed without limiting police abuses.

The history of how the amendment came to be reveals that foundational promise. In 1866, Congress formed the Joint Committee on Reconstruction to investigate conditions in the South. Some of the leading lights of the 39th Congress, including Senator Jacob Howard and Representatives John Bingham and Thaddeus Stevens, served on the 15-person bipartisan committee. The committee took testimony from white southerners, Black Americans seeking to enjoy freedom for the first time, and Union officers working in the South, learning firsthand of the gruesome violence and systemic violation of fundamental rights. The committee drafted the Fourteenth Amendment, and its findings and the testimony it heard bore directly on the amendment it wrote.

The committee’s report—released in June 1866 and widely distributed across the country—made the case for securing “the civil rights and privileges of all citizens in all parts of the republic.” If southern states were left to their own devices, Black people “could hardly live in safety” and “acts of cruelty, oppression and murder” would flourish.

Five different kinds of police abuse of power were detailed in the report: home invasions, theft of personal property, indiscriminate and pretextual arrests, wanton state-sponsored racial violence, and a refusal to protect Black people from private violence. In all these ways, the police and the criminal-justice system functioned as a lever to take freedom—and even life itself—from Black people. In vivid, terrible detail, the report cataloged how police officers acted “in respect to violence and ill usage, in every way equal to the old days of slavery”; how they arrested Black Americans as vagrants “simply because they did not have in their pockets certificates of employment from their former owners or other white citizens”; and how the police “go in squads and search houses and seize arms,” fleecing Black people of their possessions.

The committee’s report captured only a small slice of the violence. The historian Leon Litwack has observed that “how many black men and women were beaten, flogged, mutilated, or murdered in the first years of emancipation will never be known.” Still, the report made clear that the goal of protecting Black bodies from police abuse of power was fundamental to the Fourteenth Amendment.

Police brutality and murder escalated in the summer of 1866, as Congress completed its work on the amendment and the ratification process began. In Memphis, Tennessee, and New Orleans, police officers led bloody massacres that left hundreds of Black people dead and many more badly beaten. These acts of murder and pillage, led by the so-called chosen guardians of the public peace, convinced Americans that the Fourteenth Amendment’s sweeping guarantees of fundamental rights and equal protection were necessary to redress state-sanctioned violence and inequality. As an investigation of the New Orleans massacre concluded, without new protections, Black Americans would continue to be “hunted like wild beasts, and slaughtered without mercy,” and police would continue to murder innocent men and women “with entire impunity from punishment.”

This history has been brushed aside. The Supreme Court has betrayed the Fourteenth Amendment’s promise of equal citizenship by allowing police to stop, seize, arrest, beat, and kill Black Americans at will.

For example, stop-and-frisk policies, first upheld by Earl Warren’s Supreme Court in Terry v. Ohio and repeatedly expanded during the Warren Burger and William Rehnquist Courts, permit the police to subject people of color to arbitrary, degrading, and humiliating intrusions on a regular basis. The upshot is that stop-and-frisk bears a startling resemblance to the enforcement of vagrancy laws that the Fourteenth Amendment took aim at. However, by turning a blind eye to the Fourteenth Amendment, the Court has allowed racial profiling to run amok. The Court consistently ignores the role of race, even as it pervades policing.

As we have seen so often, what begins with a stop often ends in brutal police violence. In fact, as the killings of George Floyd, Eric Garner, Philando Castile, and many others show, police stops for trivial offenses can easily end in death for Black people. But the Supreme Court has never recognized that ending state-sponsored racial police violence was a core purpose of the Fourteenth Amendment. Instead, it measures whether police violence is permissible according to a hazy “reasonableness” standardBy blessing police violence if reasonable—without any showing that it is necessary to respond to an imminent threat—the Court has allowed the vicious cycle of racist police violence to repeat.

The Supreme Court has simply refused to take the Fourteenth Amendment’s text and history seriously. It is a basic idea that we can better understand the meaning of the Constitution by looking at the context of its adoption and the abuses it aimed to eliminate. The Supreme Court does this regularly. But, in a vicious form of selective originalism, the Court has ignored that ending police abuse, including police violence, lies at the core of the Fourteenth Amendment. As police officers continue to destroy innocent lives, the Court has concentrated more and more power in the police.

By disregarding the history of the Fourteenth Amendment, the Supreme Court has allowed the police to treat people of color as second-class citizens, enabling racial targeting, racial profiling, and racial violence by law enforcement. A slew of Supreme Court rulings that allow systematic stops, arrests, and brutal treatment of Black and brown Americans is the result of the Court’s erasure of the Fourteenth Amendment from the constitutional story of policing. In short, the Fourteenth Amendment’s promise of respect for the rights to life and personal security has gone unfulfilled. Now when police cross the line, holding them accountable is virtually impossible. The judge-made doctrine of qualified immunity makes suing the police for damages incredibly difficult. The exclusionary rule, which says that evidence seized by the police in the course of an unconstitutional search or seizure should be excluded from trial, is virtually a dead letter. And individuals harmed by unconstitutional policing policies, such as choke holds of the sort used to kill Floyd and Garner, cannot sue to prevent these policies from being enforced.

America’s constitutional commitments are only as good as the remedies that back them up. In the case of policing, remedies hardly exist, even on paper. The Supreme Court lets police violate citizens’ constitutional rights with impunity time and time again. As Justice Sonia Sotomayor wrote in a brilliant dissent in Utah v. Strieff in 2016, this sends the message that “your body is subject to invasion while courts excuse the violation of your rights.” By closing the courthouse doors in several ways, the Court has washed its hands of enforcing the Fourteenth Amendment’s promise that everyone—no matter their race, no matter where they are from—is entitled to live and enjoy real freedom.